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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALSHIEM THOMPSON
Appellant No. 1520 EDA 2014
Appeal from the Judgment of Sentence November 14, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007558-2007
CP-51-CR-0011042-2007
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 14, 2015
Appellant, Alshiem Thompson, appeals from the judgment of sentence
entered after his probation and parole were revoked due to the filing of new
charges against him. Additionally, Thompson’s court appointed counsel,
Jennifer A. Santiago, Esq., has filed an application to withdraw as counsel
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful
review, we affirm Thompson’s judgment of sentence and grant counsel’s
petition to withdraw.
On September 24, 2012, Thompson was arrested when he was found
in a van with his legs over a mat that concealed a loaded handgun. At the
time, Thompson was on parole from a conviction for possession of a
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controlled substance, as well as being on probation for a conviction for
possession of a controlled substance with intent to deliver (“PWID”).
The Commonwealth moved to revoke both his probation and his
parole, and a revocation hearing was held before the Honorable Glenn B.
Bronson, who had not imposed either of the underlying sentences. At the
end of the hearing, Judge Bronson found Thompson to be in violation of the
terms of his probation and parole, and revoked both. After a sentencing
hearing on November 14, 2013, Judge Bronson sentenced Thompson to a
term of imprisonment of 1 1/2 to 5 years, followed by 3 years of probation
on the probation violation, and sentenced Thompson to back time on the
parole violation. Thompson filed a timely motion for reconsideration of
sentence on Monday, November 25, 2013.1 Judge Bronson denied
Thompson relief, and Thompson filed this appeal pro se.2
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1
Prior to filing the motion for reconsideration, Thompson filed a notice of
appeal to this Court. That appeal was withdrawn by Thompson shortly after
he filed the motion for reconsideration. Thompson’s notice of appeal filed on
April 10, 2014 was untimely. See Commonwealth v. Coleman, 721 A.2d
798 (Pa. Super. 1998). However, at the close of sentencing, Judge Bronson
requested Thompson’s then-counsel to file a motion for reconsideration to
“protect his appellate rights” before withdrawing from the case. See N.T.,
11/14/13, at 89. We conclude that since the procedure followed by counsel
followed the directions given by Judge Bronson, the untimely appeal in this
case was the result of a breakdown in the court’s operation, and therefore
decline to quash the appeal. See Commonwealth v. Coolbaugh, 770 A.2d
788, 791 (Pa. Super. 2001).
2
Thompson filed one notice of appeal covering both sentences. The filing of
one notice of appeal from orders entered at different docket numbers “has
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(Footnote Continued)
long been discouraged.” 20 G. Ronald Darlington, et al., Pennsylvania
Appellate Practice § 341:3.102 (2013-2014 ed.) (footnote omitted). This
policy is set forth in the Note to Rule 341, which states that “[w]here,
however, one or more orders resolve issues arising on more than one docket
or relating to more than one judgment, separate notices of appeal must be
filed.” Pa.R.A.P., 341 Note.
Courts, however, have not automatically quashed such appeals. For
instance, our Supreme Court considered this question in General Electric
Credit Corp. v. Aetna Casualty & Surety Co., 263 A.2d 448 (Pa. 1970),
where the appellant filed a single appeal from two separate judgments
entered against it. Upon considering these facts, our Supreme Court stated:
Taking one appeal from several judgments is not acceptable
practice and is discouraged. It has been held that a single
appeal is incapable of bringing on for review more than one final
order, judgment or decree. When circumstances have
permitted, however, we have refrained from quashing the whole
appeal, but this Court has quashed such appeals where no
meaningful choice could be made.
Id. at 452-453 (internal citations and footnotes omitted).
Similarly, this Court, citing General Electric Credit Corp., declined to
quash where counsel for appellants filed only one notice of appeal from
separate orders denying each appellant’s motion to intervene. See
Egenrieder v. Ohio Casualty Group, 581 A.2d 937, 940 n.3 (Pa. Super.
1990). The panel noted that counsel should have filed a separate notice of
appeal for each appellant and that the appeals would then have been subject
to consolidation. See id. But see Commonwealth v. C.M.K., 932 A.2d
111 (Pa. Super. 2007) (court quashing single notice of appeal by criminal
co-defendants who were tried jointly but sentenced individually).
Thus, the filing of one notice of appeal is “discouraged,” but both our
Supreme Court and this Court have refrained from quashing an appeal
where “circumstances have permitted.” Our examination of the
circumstances of this appeal lead us to the conclusion that it is appropriate
to review both the revocation of parole and the revocation of probation in
this single appeal.
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As noted, Thompson’s appointed counsel has requested to withdraw
and has submitted an Anders brief in support thereof contending that
Appellant’s appeal is frivolous. The Supreme Court of Pennsylvania has
articulated the procedure to be followed when court-appointed counsel seeks
to withdraw from representing an appellant on direct appeal:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations to
the record; (2) refer to anything in the record that counsel
arguably believes supports the appeal; (3) set forth counsel’s
conclusion that the appeal is frivolous; and (4) state counsel’s
reasons for concluding that the appeal is frivolous. Counsel
should articulate the relevant facts of record, controlling case
law, and/or statutes on point that have led to the conclusion that
the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
We note that counsel has complied with the technical requirements of
Anders as articulated in Santiago. Additionally, counsel confirms that she
sent a copy of the Anders brief to Thompson as well as a letter explaining to
Thompson that he has the right to proceed pro se or the right to retain new
counsel. A copy of the letter is appended to counsel’s Anders brief, as
required by this Court. See Commonwealth v. Daniels, 999 A.2d 5990,
594 (Pa. Super. 2010); Commonwealth v. Millisock, 873 A.2d 748 (Pa.
Super. 2005).
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We will now proceed to examine the issues counsel has set forth in the
Anders brief.3 Counsel identifies only two issues for our review. Thompson
contends that Judge Bronson did not have jurisdiction over his probation or
parole, as Judge Bronson was not the judge who had imposed the original
sentences.
On appeal from a judgment of sentence following the revocation of
probation
[o]ur review is limited to determining the validity of the
probation revocation proceedings and the authority of the
sentencing court to consider the same sentencing alternatives
that it had at the time of the initial sentencing. 42 Pa.C.S.A. §
9771(b).
Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000).
“Revocation of a probation sentence is a matter committed to the
sound discretion of the trial court and that court's decision will not be
disturbed on appeal in the absence of an error of law or an abuse of
discretion.” Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super.
2008) (citation omitted). A court may revoke an order of probation upon
proof of the violation of specified conditions of the probation. See
Commonwealth v. Infante, 888 A.2d 783, 791 (Pa. 2005). “A probation
violation is established whenever it is shown that the conduct of the
probationer indicates the probation has proven to have been an ineffective
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3
Thompson has not filed a response to counsel’s petition to withdraw.
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vehicle to accomplish rehabilitation and not sufficient to deter against future
antisocial conduct.” Id., at 791 (citations omitted). Technical violations are
sufficient to trigger revocation. See Commonwealth v. Sierra, 752 A.2d
910 (Pa. Super. 2000).
Counsel certifies that she has found no authority to support
Thompson’s argument that Judge Bronson did not have jurisdiction, and the
Commonwealth agrees. Our own independent review has found no such
authority. Furthermore, Thompson’s argument elevates a mere preference
to a jurisdictional rule. Obviously, the court system prefers to allow a
sentencing judge, who best knows the circumstances of the sentence
imposed, the opportunity to deal with alleged violations of that sentence.
However, that preference is administrative only, and does not constitute a
right held by defendants. We therefore agree with counsel that this issue is
wholly meritless.
Next, Thompson contends that the sentence imposed is excessive.
This claim raises a challenge to the discretionary aspects of the sentence
imposed. See Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa.
Super. 2007).
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). When challenging the discretionary aspects
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of the sentence imposed, an appellant must present a substantial question
as to the inappropriateness of the sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be
met before we will review this challenge on its merits.” McAfee, 849 A.2d
at 274 (citation omitted). “First, an appellant must set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Id. (citation omitted).
“Second, the appellant must show that there is a substantial question
that the sentence imposed is not appropriate under the Sentencing Code.”
Id. (citation omitted). That is, “the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.” Tirado,
870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)
statement to determine whether a substantial question exists. 4 See id.
“Our inquiry must focus on the reasons for which the appeal is sought, in
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4
Rule 2119 provides the following, in pertinent part:
(f) Discretionary aspects of sentence. An appellant who
challenges the discretionary aspects of a sentence in a criminal matter
shall set forth in his brief a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects
of a sentence. The statement shall immediately precede the argument
on the merits with respect to the discretionary aspects of sentence.
Pa.R.A.P., Rule 2119(f), 42 PA.CONS.STAT.ANN.
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contrast to the facts underlying the appeal, which are necessary only to
decide the appeal on the merits.” Id. (citation omitted).
In the present case, Thompson’s appellate brief does not contain the
requisite Rule 2119(f) concise statement, and, as such, this issue could be
technically waived. See, e.g., Commonwealth v. Gambal, 561 A.2d 710,
713 (Pa. 1989). Furthermore, the argument section of counsel’s Anders
brief does not separately list the arguments regarding each issue identified.
However, rather than remand for an appropriate Anders brief, we will
address Thompson’s issue on the merits in the interest of judicial efficiency.
Thompson argues that the sentence imposed by the trial court was
excessive. It is well-settled that a generic claim that a sentence is excessive
does not raise a substantial question for our review. See, e.g.,
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013).
Additionally, we observe that Judge Bronson thoroughly identified the factors
that led him to impose the sentences at issue: Thompson’s significant
criminal history, the leniency the sentencing courts had initially shown and
Thomspon had abused, and Thompson’s inability to recognize the
seriousness of the charges he was facing. Pursuant to this reasoning, we
conclude that the sentences imposed by Judge Bronson do not constitute an
abuse of discretion, and therefore, we agree with counsel that this issue is
wholly frivolous.
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After examining the issues contained in the Anders brief and
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Permission to withdraw as counsel is
granted. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2015
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